- (1.) Present writ petition has been filed by the petitioner before this Court questioning the validity of the order dated 25.11.2009 passed by the General Manager U.P.S.O.-II Indian Oil Corporation Ltd., E-8 Sector-1 Noida canceling Retail Outlet Agency of the petitioner and order of its affirmance in appeal vide order dated 29.3.2010 passed by Executive Director (Retail Sales), Indian Oil Corporation Ltd. (Marketing Division) Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra, (East) Mumbai. Civil Misc. Writ Petition No. 45358 of 2010 has been filed by Indian Oil Corporation refusing to refer the matter of Arbitrator by Civil Judge, Senior Division, Moradabad. Brief background of the case is that petitioner has been dealer of the Indian Oil Corporation Ltd. at Site 'B' Majhola Delhi Road, Moradabad since 1967 and has been running his dealership in the name and style of M/s. Auto Oil Company which is a sole proprietorship concern. The dispensing unit of the petitioner Make T-20 (Tokheim 2T Mix) machine with grade MS 3% was defective with respect to which the petitioner made a complaint to the local office of the respondents. On such complaint, inspection was done by the officials of the manufacturer who found the actual problem of excess delivery of the meter assembly as meter assembly was reporting 25 M.L. to 90 M.L. excess. After the report was submitted and upon verification by the officials of the respondents themselves, it was found that the meter assembly unit required to be changed. Accordingly, meter assembly unit of the machine was arranged by the respondents on 15.9.2009. Petitioner has stated that for the purposes of changing the said part of the machine necessary permission was required from the Weights and Measures Department and petitioner in his turn completed necessary formalities and deposited requisite fee to the Weights and Measures Department vide receipt dated 16.9.2009, bearing receipt No. 400319 and 400305 for an amount of Rs. 500/- and Rs. 970/- respectively. Petitioner has stated that official of Weight and Measure Department on 18.9.2009 sealed the same and issue him certificate accordingly, Petitioner has further stated that after the sealing was done, the Anti-adulteration Cell of the respondent corporation visited the site and prepared an inspection report whereby, it verified that stock variation was within permissible limits and all the weights and measures certification were available at the time of inspection. It was further clarified that Weights and Measures seals on all the totalisers were found O.K. at the time of inspection and all the weights and measures seal of all the dispensing units were found intact at the time of inspection. Petitioner has stated during their inspection on 18.9.2009, the officials of the respondent corporation also mishandled the seals as put by the Weights and Measures Department. On 24.9.2009 the Weights and Measures Department again inspected the petitioners unit and found that their seals as put on the petrol dispensing unit had been tampered with. The said dispensing unit was thereafter sealed by the Weights and Measures Department and sales from the aforesaid unit was closed. The petitioner was accordingly issued a show cause notice by the Senior Inspector of the Weights and Measures Department of the State Government. The petitioner immediately replied the said show cause notice on 25.9.2009 and specifically stated that one Sri K.K. Verma, who was the Chief Manager of the Anti-adulteration Cell has tampered the seal put by the Weights and Measures Department and has pulled out the pin from the seal which was strongly objected to by Manager of the petitioners Sri N.K. Rastogi who was present on the spot. However, on such objection, Sri K.K. Verma prepared a false report about improper sealing and pressurized the Manager of the petitioners to put his signature, which was refused by Sri N.K. Rastogi and he said that he will not put the signature. Being convinced with the reply submitted by the petitioner, a show-cause notice was issued to Sri K.K. Verma by the Weights and Measures Department on 1.10.2009 and a copy of the said show-cause issued to Sri K.K. Verma. Said notice was replied by Sri K.K. Verma on 22.10.2009. Petitioner submitted that thereafter show cause notice was issued to the petitioner on 30.9.2009 whereby inter alia, it was mentioned that sealing is improper and not tamper proof therefore, the petitioner must show cause against the same. This was replied by the petitioner on 12.10.2009 wherein the petitioner stated the information regarding seal being not tamper proof or otherwise, can be taken from the Weights and Measures Department and the petitioner is not concerned with the sealing part. This was supplemented by the petitioner vide his reply dated 27.10.2009. Petitioner has stated that during this period material was being supplied to him till 31.12.2009. Petitioner has stated that his supplies were stopped on 31.12.2009, then Suit No. 767 of 2009 was instituted before Civil Judge (Senior Division), Moradabad with the prayer that respondents may be restrained from causing any interference in the running of the retail outlet by the petitioner and further be restrained from causing any interference in the supplies to be made to the petitioner, Petitioner has also given details of initiation of the criminal proceeding against K.K. Verma before the Court of Additional Chief Judicial Magistrate. On 11.12.2009, petitioner has stated that orders were passed for ensuring compliance of the order passed by Court. Petitioner has thereafter stated that on 5.1.2010, the respondents filed an application under Section 8 of the Arbitration Act inter alia praying that the suit be dismissed in view of the existence of the arbitration clause in the agreement and for the first time along with the said application, they enclosed the impugned order of termination dated 25.11.2009. Upon filing of the said application, the petitioner for the first time came to know about the passing of the order dated 25.11.2009 as against the petitioners. Prior to 5.1.2010, the petitioners had no knowledge about the order of termination passed against them. The aforesaid application filed by the respondents under Section 8 of the Indian Arbitration and Conciliation Act was rejected by the Court of Additional Civil Judge (Senior Division), Moradabad on 8.1.2010. After coming to know about the passing of the orders dated 25.11.2009 on 5.1.2010, the petitioner filed an appeal before the respondent No. 2 on 16.1.2010. The respondents were neither deciding the appeal nor resuming the supply to the petitioner. Compelled under such circumstances, the petitioner approached this Court by means of writ petition No. 6177 of 2010 which was disposed of by this Hon'ble Court on 5.2.2010 inter alia commanding the respondent No. 2 to decide the appeal within the period of stipulated. Pursuant of the said order passed by this Court dated 5.2.2010, the respondents called the petitioner for hearing on 26.2.2010 and subsequently on 29.3.2010 the appeal filed by the petitioner had been dismissed. At this juncture Writ Petition No. 23194 of 2010 has been filed by petitioner and Indian Oil Corporation has also filed writ Petition No. 45398 of 2010. Both the petitioner have been clubbed.
(2.) Counter-Affidavit has been filed and therein action taken against the petitioner has been justified and it has been contended that petitioners have adequate efficacious alternative remedy to approach Arbitrator as provided in Clause 67 of the agreement and further petitioner has not approached the Court with clean hand.
(3.) Rejoinder-Affidavit has been filed and thereafter, supplementary counter-affidavit and supplementary rejoinder-affidavit have been filed and thereafter present writ petition has been taken up for final hearing/disposal with the consent of the parties.;